On "Intellectual Property" and Indigenous Peoples

As a side effect of my work for the World Summit on the Information
Society (WSIS), I made contact with people I might never have met
otherwise. This has proven to be inspiring in ways that I would never
have imagined.

The following is a direct result of my trying to understand the
problems of the Indigenous Peoples and some of their core needs and
concerns, a process that started even before WSIS, when meeting and
discussing with people such as a lawyer from Sri Lanka who is working
to preserve local medical and botanical knowledge.

Although I won't claim understanding the local situation to its
full extent, it seems obvious that Indigenous Peoples all over the
world are suffering from overzealous monopolisation of their grown
knowledge. In particular, pharmaceutical companies are gaining limited
intellectual monopolies, especially patents.

In a dual strategy of using existing power-imbalances and lawsuits
against people who often cannot afford hiring lawyers themselves,
these are afterwards used to exterminate traditional and existing
practices, replacing them by their patented ones, effectively
disallowing usage of what has been common and customary for
generations.

For this problem was created by overzealous monopolisation, I was
surprised that many Indigenous Peoples seem to be demanding even
stronger monopolisation in the form of "intellectual property rights,"
including their culture and heritage.

Having followed the discussions about the problems created by
patenting of genes in Europe where people were (often unknowingly)
deprived of the right to their own, most personal self by physicians
applying to patent genes they found when examining them, such increase
in monopolisation has never provided more freedom.

Feeling solidarity with the Indigenous Peoples of this planet, I would
like to understand what has caused you to come to ask for such an
increase in monopolisation. Which is the reason for this document to
exist.

Let me try to express what seems to be the most likely outcome of such
increased monopolisation. How would the situation change for your
peoples if the demands for expansion of limited intellectual
monopolies succeed?

Assuming a perfect world, the foreign monopolisation stops,
Indigenous Peoples are given full "ownership" and "control" over all
their cultural, intellectual and so-called natural resources.

It will not change the situation regarding fundamental problems such
as food, water, health care, education, economy, stability or
political independence. Most importantly, it will not provide access
to the knowledge accumulated by the North that might help with these
issues.

The price to pay for that change is to agree to the basic ideology
that knowledge and culture are things that individuals could "own" and
that it was morally right to give full "ownership" and "control" to
those who built up that knowledge.

If this is the accepted moral benchmark, following the principle of
equality of human rights, Indigenous Peoples have agreed that the
North is morally entitled to not give them access to the knowledge it
assembled over the centuries, which is massively responsible for the
digital divide and global power inequalities.

Also, "intellectual property rights" are pure trading goods. By
including the culture and heritage of Indigenous Peoples in this
system, it is classified primarily as a trading good. It is therefore
to be bought and sold and to be respected for its economic value
before everything else. An ideology that carries within the tendency
to percieve cultural and traditional knowledge mainly as something to
maximise profits from.

Having removed the moral obligation for the North to share its
wealth and knowledge, their traditional knowledge trading good will be
the only bargaining chip of Indigenous Peoples to secure the future of
their peoples.

Because of current global power inequalities, the price and
contractual conditions will be largely dictated by the Northern media
companies. Resisting that would mean being able to afford not making
any deal, at all. But making the deal will often be the only way to
obtain basic access to food, water, health, education and the public
domain of global knowledge.

So in the most extreme case, the culture and heritage of Indigenous
Peoples would end up as the "property" of Northern media
companies. Depending on the contracts, future generations of
Indigenous peoples may not even be entitled to "use" their own
cultural heritage.

Regardless of who gets the monopoly, it is such monopolisation
itself that threatens to cut the social bonds between you and the rest
of humankind. The way rituals are kept alive is by practising and
sharing them, the way to keep languages alive is to speak them with as
many people as possible.

In a system of "intellectual property," sharing, even communicating is
dangerous. Whenever someone who happens to be an author or artist gets
in touch with someone else, they have to be very careful and possibly
break off contact immediately and stop talking to you; otherwise they
risk infringing Copyright and expensive lawsuits in case they may have
felt inspired by the discussion.

That lawsuit may or may be brought upon them by the Indigenous
Peoples or the Northern media company that has "bought" that specific
piece of heritage and now "owns" it.

Consequently the monopolising system is breaking the bond of
solidarity, sharing and communication connecting all of humankind. To
the Indigenous Peoples it means their language, rituals and heritage
will be in danger of becoming extinct along with the last generation
that grew up with them.

So in a perfectly working system and world, the price to pay for such
expansion of monopolies may be nothing less than the cultural identity
of the Indigenous Peoples.

As we don't happen to live in a perfect world, reality won't be as
clean as this, although the price will still have to be paid.

Based upon past experience, one would assume that Northern companies
will hire plenty of expensive lawyers that this particular plant, that
particular ritual and this piece of music is not exclusive to the
Indigenous Peoples they are dealing with, so its "ownership" was
unclear.

If the Indigenous Peoples wish to assert their claims, they will have
to spend years in court with high expenses against the best lawyers
money can buy and corporations that can often afford to wait for a
"biological solution" of their problems -- a cynical euphemism used to
refer to the death of those who have taken them to court.

With or without such cases, they will enter into negotiations with all
the Indigenous Peoples that can arguably make claims to that
"property" and buy from the those that make the cheapest offer,
leaving the others with a suddenly worthless bargaining chip.

If you know that your bargaining chip will be worthless if you don't
make the deal yourself, your willingness to make the deal might
increase quite a bit.

Also, when being offered food and education for their children, other
Indigenous Peoples may be tempted to support the company position in
court. So it seems plausible this will stress the solidarity between
the Indigenous Peoples. Possibly even do damage that cannot be
repaired.

Having turned what was originally a moral and cultural issue into a
trading good and courtroom issue, it will show all normal shortcomings
of the legal systems -- including the question of neutrality and the
tendency to favor those who have the better lawyers.

Some Indigenous Peoples may win in the "intellectual property rights
lottery" by finding some valuable plant or something of equal economic
value. But this lottery will know few winners, but many losers -- and
winning in this context really means coming out below neutral, as the
value will always be small compared to the assembled portfolios of
Northern corporations.

Given the price that is to be paid for playing the system, it is a
kind of russian roulette where all the chambers of the gun but one are
loaded and you have to hope for the empty one.

The system and ideology of "intellectual property" has evolved
exclusively to cater to the needs of large Northern media
corporations. Northern societies, and in particular their artists and
authors, have massive problems with the system themselves.

It is precisely for this system that the digital divide and current
power inequalities are as large as they are.

Considering what seems like the most likely outcome, the only chance
of long-term survival and prosperity for Indigenous Peoples appears to
be less monopolisation, a stop of monopolisation of their cultural and
intellectual resources.

Perspectives

Most like the problem should be approached from within and without at
the same time. Find allies active in the field from the North and
train your own people to know the ways of the system so they can help
you questioning it from within. Also they will be able to help you
setting up defenses against immediate attacks while the system still
exists in its current state.

At the same time, it will be necessary to avoid legitimising the
current system and trying to withstand being missionised by the dogma
that "intellectual property" has become.

Part of that will be to avoid the dangerous and ideologically charged
terminology of "intellectual property" and prefer alternative
terminology like "limited intellectual monopolies" or -- even better
when talking about their effects -- to be precise about the specific
areas like copyright and patents exists.

Instead of asking for "ownership and control of," it might be better
to ask for "benefitting fully and with priority from" your "cultural,
intellectual and so-called natural resources."

This emphasises the problem and the need for a solution without
submitting to the ideology and power-system that is "intellectual
property."

I hope this will prove to be a useful contribution to an essential
debate that has happened around the World Summit -- and would like to
see whether we manage to come up with concrete visions on how to
overcome these problems together.

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